The central legal point established in the judgment is the interpretation of the possession stipulation in the agreement and the application of the provisions of the Stamp Act in determining the admissibility of the document in evidence.

1. Heard Shri De, learned counsel for the petitioner – plaintiff, Shri Alaspurkar, learned counsel for respondent No. 1 –defendant No.1 and Shri Patil, learned counsel for respondent No.2 – defendant No. 2.

2. Shri De, learned counsel states that the petitioner filed suit for specific performance on the basis of a written agreement and in it made a specific prayer for recovery of possession. He states that only at one place in the plaint, it is mentioned that possession of the suit field was delivered to the petitioner. However, according to him, reading of entire plaint shows that such possession was never delivered. To show that such possession was never delivered, he invites attention to written statement filed by contesting defendant i.e. defendant No. 1 and he also states that defendant No. 2, though really not a necessary party, has also accepted that the petitioner – plaintiff is not in possession. In this situation, he contends that objection raised by defendant No. 2 to the exhibition of said document i.e. agreement for sale (Exh. 51) is misconceived. His contention is, in view of the provisions of Section 35 of The Bombay Stamp Act, 1958, (hereinafter referred to as Stamp Act), as the document was exhibited and admitted in evidence, later on an order impounding it could not have been passed. The document was exhibited on 06.04.2009 and on 29.04.2009, defendant No. 2 filed application under Sections 33 and 34 of the Stamp Act and sought an order impounding that document dated 07.06.2002. In above facts, his contention is, when parties before the Court were ad idem about the possession of suit property being with defendant No.1, the trial Court could not have recorded any finding on said application of defendant No. 2 till it adjudicated that aspect of possession. He fairly accepts that agreement dated 07.06.2002 contains a stipulation about delivery of possession but in above facts as that stipulation is factually incorrect, it does not constitute an agreement and hence because of that stipulation, the document could not have been impounded.

3. Shri Alaspurkar and Shri Patil, learned counsel for respective respondents support the impugned order. They have invited attention to relevant findings recorded by trial Court in impugned order dated 14.07.2009 and state that the agreement has been rightly interpreted. Reliance is being placed upon the judgment of this Court in the case of Sheshrao Bhikaji Kale vs. Damodhar Kukaji Pandhare, reported at 2004 (2) ALL MR 880 and Santosh vs. Pukharaj, reported at 2010 (4) Mh. L.J. 22, to substantiate their contentions.

4. The perusal of plaint as filed reveals that the plaintiff there has stated that on 07.06.2002 after the land was measured through a private Surveyor, actual possession of suit field was delivered by defendant No. 1 to him, however, in prayer clause there is a prayer to pass a decree for delivery of vacant possession of suit field to plaintiff. Defendant No. 1 who has entered into that agreement on 07.06.2002, filed his written statement on 10.10.2007 and in it stated that the possession was never delivered. However, he also made a prayer in para 2 therein that the agreement dated 07.06.2002 was liable to be impounded and could not have been admitted in evidence. There is a specific reference to explanation of Article 25 of the Stamp Act for this purpose. Defendant No. 2 claimed to have entered into an agreement for purchase of suit property only with defendant No. 1 earlier and his suit for specific performance was partly decreed. He was declined specific performance and refund of sale consideration was ordered. Defendant No. 2 claims to have challenged that judgment and decree in Regular Civil Appeal. The said defendant No. 2 filed his written statement on 04.09.2007 and in para 14 stated that as per his knowledge, possession was with defendant No. 1 only. It is in this background that the petitioner – plaintiff has tendered his evidence.

5. He fi